Canada: Federally Regulated Employers – Brace For Impact: (A Lot Of) Changes Are Coming

Last Updated: November 28 2018
Article by Andrew Nicholl

Most Read Contributor in Canada, November 2018

Employers in Canada – more significant legislative change is on its way, this time from the federal government in the form of Bill C-86. Bill C-86 has now passed its second reading in parliament and, subject to it passing third reading and receiving royal assent, employers in federally regulated industries will be significantly affected.


The bottom line

Following on the heels of Bill 148 in Ontario that introduced significant changes under the Employment Standards Act, 2000 (the ESA) and Labour Relations Act, 1995 – many of which will be rolled back under the new government's Bill 47 (which received royal assent on November 22, 2018: see our blog post on the subject) – and similar employment standards reform legislation in other provinces, the federal government has joined in on the fun. Bill C-86's proposed reforms would have a significant impact on many aspects of federally regulated employment. We have set out several of the proposed changes below. 

Based on the wave of issues that emerged for employers in Ontario as a result of Bill 148, we advise that employers ensure they are well positioned to comply well before the effective date of the changes with whichever of the new requirements introduced under Bill C-86 become law.

One lesson learned from the introduction of the Bill 148 changes is there will be unintended complications for existing employment policies and procedures. For example, questions will undoubtedly arise on whether employers are already in compliance with new requirements under their existing policies and such questions will need to be assessed carefully. The introduction of new employment standards will also substantially impact employment costs and companies will need to be mindful of those impacts.

Proposed changes under the Canada Labour Code

Amongst the package of reforms, the following changes to the Canada Labour Code (the Code) are proposed:

  • Individual Termination of Employment: The Code will amend its termination notice scheme to align with many of the regimes in place under provincial employment standards legislation so that employers' notice obligations increase based on years of service, starting at two weeks after three months continuous employment up to a maximum eight weeks for employees who have completed eight years of employment.

  • Group Termination of Employment: The group termination regime under the Code is getting significantly revised. Among the changes is the introduction of various options for complying with the re-branded 16-week "group notice period" under the group termination regime. For example, the proposed amendments would expressly permit employers to provide 16 weeks' pay in lieu of notice. The amendments also require employers to provide "redundant employees" under the regime with "transitional support measures" that will be prescribed by regulation.

  • Equal Pay for Equal Work: Bill C-86 proposes prohibitions on employers from paying their employees differently based on "employment status" (i.e. full-time vs. part-time) if such employees share certain work characteristics (including working in the same industrial establishment, performing substantially the same kind of work that requires substantially the same skill, effort and responsibility under similar working conditions, and any other factor prescribed by regulation).

    Like the amended ESA, there will be exceptions permitting differential pay based on certain enumerated criteria including seniority, merit, quantity or quality of production, or any other criterion that is prescribed by regulation; employers must be careful that, if they draw such distinctions, they can be proven to be bona fide as employees will have a right to make a written request for a review of their rate. Employers provided with such a request will have 90 days to either increase the rate of wages or provide a statement explaining why the employer is in compliance. Employers will also be prohibited from decreasing the rate of pay of an employee to comply with the equal pay obligation. In addition, the proposed legislation will affect temporary help agencies and companies who use temporary help agencies in several ways, including by preventing such agencies from paying their employees less than what an employee of the client company is paid for the same work. Relatedly, there are also new obligations related to temporary employees (for example, such employees must be treated the same as other employees regarding opportunities for employment).

  • Who is an "employee"?: The proposed changes impose the burden of proof on employers to prove they have not mistakenly classified an "employee" as an independent contractor in any proceeding in which the employer alleges a complainant is not an employee.

  • Vacation/Holiday Pay: Vacation entitlement to be increased as follows: (i) three weeks after five years; and (ii) four weeks after 10 years. The corresponding percentages for vacation pay will also be increased to, respectively, at least 6% after five years and 8% after 10 years. The minimum length continuous service requirement for holiday pay is also being eliminated.

  • New Leaves: The continuous service requirement to trigger entitlements to various leaves (i.e., medical leave, maternity leave, parental leave, leave related to critical illness and leave related to death or disappearance of a child) will be removed. Other changes/amendments include:

    • Personal leave of up to five days in every calendar year for illness, injury, carrying out responsibilities related to the health or care of a family member, carrying out responsibilities related to the education of a family member who is under 18 years of age, urgent matters concerning the employee or a family member, attending a citizenship ceremony, and any other reason prescribed by regulation. Three of these days are to be paid after three months of continuous employment. Employers will have a limited right to request documentation to support the reasons for the leave.
    • Unpaid leave for pregnant or nursing women if it is determined by a health care practitioner that the employee cannot perform duties of the job (including modified duties) without risk.
    • Unpaid jury leave for employees who are jurors, witnesses or are required to participate in jury selection.
    • Employees who are victims of family violence who have completed three months of employment will be paid for their first five days of leave.
  • Scheduling: Employers will have to provide an employee with his/her work schedule in writing at least 96 hours before the start of the employee's first work period/shift under that schedule. If an employer fails to meet these requirements, employees will have a right to refuse work. Similar to the Bill 148 amendments in Ontario, there will be exceptions to account for emergencies. Some industries will also be exempted and primacy will be given to collective agreements if a collective agreement provides an alternate time frame or provides that the section does not apply.
  • Shift Breaks: Employers will have to provide an unpaid break of 30 minutes after five consecutive hours between shifts. In addition, after eight consecutive hours of work, employers must provide a paid rest between shifts. Exemptions are provided for emergencies and certain industries. For employees who are nursing or have medical issues, there is also a requirement to provide unpaid breaks.

  • Work-Related Expenses: Employees will be entitled to reimbursement of reasonable work-related expenses, subject to certain conditions.

The new Pay Equity Act

In addition to the above changes to the Code, Bill C-86 also proposes a new Pay Equity Act. It would introduce several measures to address pay equity including:

  • require employers to establish plans for pay equity;

  • require certain employers to implement committees to deal with pay equity;

  • establish a commissioner to administer and enforce the Pay Equity Act; and

  • implement monetary penalties to ensure compliance.

Note that the specific requirements will vary based on the size of employer. For a more detailed assessment of the proposed pay equity legislation, see our blog post on the subject.


About Norton Rose Fulbright Canada LLP

Norton Rose Fulbright is a global law firm. We provide the world's preeminent corporations and financial institutions with a full business law service. We have 3800 lawyers and other legal staff based in more than 50 cities across Europe, the United States, Canada, Latin America, Asia, Australia, Africa, the Middle East and Central Asia.

Recognized for our industry focus, we are strong across all the key industry sectors: financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and life sciences and healthcare.

Wherever we are, we operate in accordance with our global business principles of quality, unity and integrity. We aim to provide the highest possible standard of legal service in each of our offices and to maintain that level of quality at every point of contact.

For more information about Norton Rose Fulbright, see nortonrosefulbright.com/legal-notices.

Law around the world
nortonrosefulbright.com

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
McCarthy Tétrault LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
McCarthy Tétrault LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions